Opinion
No. FA 90 0127756S
March 1, 2005
MEMORANDUM OF DECISION
The matter comes before this court by virtue of a Contempt Citation (#131) filed by the plaintiff on July 14, 2003. Between the time of the filing of the citation and the hearing, which took place more than one year from the filing of the citation, there were a number of motions filed by both parties regarding discovery and seven separate stipulations were filed regarding discovery. The hearing took place over a two-day period, and the court received into evidence eleven exhibits from the plaintiff and twenty-three exhibits from the defendant. The court allowed the parties to file trial memoranda. The defendant also filed a reply brief to the plaintiff's trial memorandum.
The marriage of the parties was dissolved by order of the court on September 28, 1990. The plaintiff, represented by counsel, and the defendant, acting pro se, entered into an agreement regarding the custodial arrangements of their three children, Grace, born August 8, 1984, Catherine, born April 22, 1986, and Kristian, born April 11, 1989. The agreement as to child support was as follows:
"2 Child support of $345/week (46% of $750), to be increased to 48% of the defendant's then weekly disposable income when Catherine becomes 6, then to 50% when Kristian becomes 6."
The judgment of the court reflects the same wording as to child support.
Catherine turned 6 on April 22, 1992, and Kristian turned 6 on April 11, 1995.
The defendant paid the child support of $690 biweekly in accordance with the dissolution agreement and judgment and was current with his child support payments as of April 22, 1992. He increased the child support payment to $721 biweekly as of April 22, 1992. On September 4, 1992, the plaintiff's counsel sent a letter to the defendant acknowledging that the child support payment increased, but indicated that the defendant had been unwilling to provide the plaintiff with a copy of his pay stub and requested the defendant to forward a copy. (Defendant's Exh. 12.) The defendant responded directly to the plaintiff and forwarded her a pay stub dated February 14, 1992, indicating that this was the only one he could find which showed his weekly disposable income at the time of Catherine's birthday, as well as "[certifying] that there was no change from the date of this stub." (Defendant's Exh. 13.) The pay stub reflected a gross weekly income of $1,136 and a net income of $757, allowing for deductions for federal and state taxes, and life insurance costs. The plaintiff testified that she does not recall receiving the letter and the pay stub, although she recalls asking for proof of the defendant's income six or seven times. There was no evidence of any request beyond the letter of the plaintiff's counsel.
The letter also indicated "[w]e are entitled to have some verification of your disposable income . . ." but neither the agreement nor the judgment required the defendant to automatically provide one to the plaintiff.
When the youngest child, Kristian, turned 6 on April 11, 1995, no adjustment was made to the child support payment. Instead, the defendant continued to pay child support in the amount of $360.50 ($721 bi-weekly) until August 8, 2002, when Grace turned eighteen, and then reduced the child support to $301 per week ($602 bi-weekly). He has continued to pay that amount until the date of the hearing.
The defendant filed a Motion to Modify Child Support, Post-Judgment (#152) which was granted by agreement on November 15, 2004 (Swienton, J.). The agreement provided the child support would be reduced to $283 per week retroactive to October 15, 2004.
So why were no motions to modify filed or any contempt motions served? The plaintiff's version of the story is she was afraid of the defendant and what action he would take against her if she tried to bring him into court to enforce the dissolution. She was afraid of the confrontation and dealing with the defendant's hostility. She testified that at one point he threatened to "take the children away from her" and if she raised the subject of child support, she was met with belligerence, harsh language and lack of cooperation and compliance. She also gave as a reason for not seeking a modification or contempt action sooner that she had no money for legal fees. The children are now of college age, and according to the plaintiff, are discouraged from attending college because there is no money; therefore, she believed this was now the time to address these issues and resolve them so "my children" could get into college.
The defendant testified that he offered to pay the University of Connecticut equivalent for Grace who had dropped out of college, and, in fact, was paying for Catherine's tuition at UConn.
The defendant, as one might expect, has an entirely different side to the story. He testified that some time in April 1995, when the next adjustment to the child support was scheduled to be made, he had a conversation with the plaintiff. He had learned that new Child Support Guidelines had been enacted in 1994, and in reviewing those guidelines, he believed that what he was paying at that time was in excess of the guideline amount. Further, around that time, the plaintiff had relocated with the children from Storrs to Stonington which increased the amount of time necessary for visitation as well as the expense of the travel. He testified that he confronted the plaintiff with this issue and showed her that the calculation of child support under the Guidelines was less than what he was currently paying. It is his position that they agreed that the plaintiff would not seek to increase the child support and he would not file a motion to modify seeking a decrease in accordance with the 1994 Child Support Guidelines. So he continued to pay the $721 bi-weekly and no adjustment was made for visitation and transportation.
The plaintiff's contempt citation alleges that pursuant to the terms of the judgment, the defendant was ordered to pay $345 per week representing 46 percent of his income at the time of the dissolution for child support, to be increased to 48 percent of his then weekly disposable income when the middle child reached the age of six on April 22, 1992, and 50 percent of his then weekly disposable income when the youngest child reached six on April 11, 1995. She further alleges that the defendant has repeatedly refused to provide her with documentation of his income so that she could calculate the proper support amounts and that his payments of support were not made on a consistent basis. As a result, the plaintiff alleges a significant amount of arrearage. She seeks by way of relief an order for the defendant to provide documentation of his income from April 1991, to the present so that correct child support figures may be calculated, a finding of contempt, as well as attorneys fees.
Both parties attempted to provide documentation of the payments for the past twelve years. As expected, some of the documentation was not able to be located.
The defendant in turn filed an objection to the contempt citation claiming the plaintiff is barred from seeking enforcement by the doctrines of equitable estoppel, laches and waiver. He also raises the issue of whether the child support provision of the original judgment of dissolution is self-executing. The court must first deal with this issue and determine whether or not the child support provision is self-executing.
Provisions in dissolution agreements which provide for changes in its terms based upon events which are definite and discernable have generally been found to be self-executing and therefore not requiring the party seeking relief to seek a modification or other order from the court. See, e.g., Stein v. Stein, 49 Conn.App. 536, 540, 714 A.2d 1272 (1998) (provision that terminates alimony when plaintiff obtained full-time employment self-executing); DeMaria v. DeMaria, 47 Conn.App. 729, 734, 707 A.2d 741 (1998) (provision that terminates alimony upon cohabitation self-executing), rev'd on other grounds, 247 Conn. 715, 724 A.2d 1088 (1999).
". . . [W]here there is an ambiguous term in a judgment, a party must seek a clarification upon motion rather than resort to self-help." Sablosky v. Sablosky, 258 Conn. 713, 720, 784 A.2d 890 (2001). "Court orders must be complied with until they are modified by a court or successfully challenged." Eldridge v. Eldridge, 244 Conn. 523, 530, 710 A.2d 757 (1998). In Eldridge, the husband was obligated to pay periodic unallocated alimony and child support, and the judgment provided that in the event that the wife's gross annual earnings exceeded $25,000, one-half of the amount by which her earnings exceeded $25,000 would be deducted from the periodic unallocated alimony. The husband, upon learning that his wife's earnings exceeded the $25,000 seven years prior, began to withhold alimony payments believing he was due a credit. The Supreme Court held that the provision was not self-executing and that in order for the husband to reduce his alimony obligation, he would have to seek a modification from the court.
The citation history of this case is: Sablosky v. Sablosky, 61 Conn.App. 66, 762 A.2d 922 (2000), rev'd, 258 Conn. 713, 784 A.2d 890 (2001), on remand, 72 Conn.App. 408, 805 A.2d 745 (2002).
In Behrns v. Behrns, 80 Conn.App. 286, 835 A.2d 68 (2003), the court determined that a provision of a separation agreement providing that alimony be reduced or increased annually by "the lesser of the cost of living increase as measured by the consumer price index or the percentage increase or decrease in the defendant's salary" was not self-executing. The court, applying the principals enunciated in Eldridge and Sablosky that "if the terms of an agreement are ambiguous, its provisions are not self-executing" led the court to the conclusion that the separation agreement was considerably less clear than the agreement in Eldridge and therefore was similarly not self-executing. Id., 290 ". . . [T]here may be some orders that are self-executing, either by their terms ('the plaintiff shall pay to the defendant as child support for each child the sum of $15,000 per year until the child's eighteenth birthday when said support shall cease') or by operation of law ('terminating alimony upon remarriage')." Eldridge, supra, 244 Conn. 530.
The plaintiff argues that the provision regarding the increases in child support were based on the birthdays of the two children and therefore based upon definite and discernable events. The court would agree with that interpretation. However, what leads this court to the conclusion that this provision was not self-executing and required the intervention of the court to change the child support amount is the ambiguity of the provision as a whole, a percentage of the defendant's then weekly disposable income. Nowhere in the agreement or judgment of dissolution is there a definition of the phrase "weekly disposable income" nor do the Child Support Guidelines define this term. The phrases "gross income" and "net income" are commonly used and defined in the Child Support Guidelines, however, the term "then weekly disposable income" is not subject to a common meaning or interpretation, nor is it defined in the parties' separation agreement. It is logical to conclude that the term "disposable income" is different than "net income." Even the plaintiff herself is unsure as to what this number would be. She provided the court several alternate scenarios for calculation of the arrearages she is claiming as set forth in her Exhibit E. Another question arises as to whether the child support was to change on a yearly basis based upon the defendant's then weekly disposable income or whether the changes only incurred in 1992 and then again in 1995.
Further evidence to indicate "disposable" income differed in meaning from "net" income is the financial affidavit of the defendant filed at the time of the dissolution. His financial affidavit showed a net weekly wage of $799. The separation agreement indicated child support in the amount of $345, representing 46 percent of $750. The court concludes that the $750 figure represented the defendant's "disposable" income.
The plaintiff raised this issue during her testimony but stated that her understanding was the change in child support would only occur in 1992 and 1995.
The plaintiff further argues that since the defendant on his own increased his child support payment in April 1992, he acknowledges that the provision is self-executing. Because he increased his child support payment in 1992 does not change the fact that the terms of the agreement were ambiguous as both parties attached a different meaning to the words in the agreement to calculate the income of the defendant to be used as a basis for a determination of child support. "When there is an ambiguous term, [the court] will not countenance one party's interpreting the term and undertaking unilateral action to the detriment of the other party. In such a circumstance, the party seeking to alter payments must seek the assistance of the court." Behrns, 80 Conn.App. 291.
The court concludes that the provisions of the dissolution agreement were not self-executing due to the ambiguity in its terms. Therefore, the defendant was only obligated to pay the child support in the amount of $345 per week absent a court order or the agreement of the parties that some other number satisfied the terms of the judgment, in this case $360.50.
If the court were to find the agreement to be self-executing, the defendant argues that the plaintiff's claims are barred by the doctrines of laches, equitable estoppel and waiver.
"Laches occurs when neglect or omission to assert a right taken in conjunction with lapse of time and other circumstances, causes prejudice to an adverse party so as to operate as a bar to relief in equity." Traggis v. Shawmut Bank Connecticut, N.A., 72 Conn.App. 251, 262, 805 A.2d 105 (2002). "Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant." (Internal quotations marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 486 n. 21, 717 A.2d 1177 (1998); Kurzatkowski v. Kurzatkowski, 142 Conn. 680, 685, 116 A.2d 906 (1955). "Laches in legal significance is not mere delay, but delay that works a disadvantage to another. So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable and operates as an estoppel . . . the assertion of the right." 2 Pomeroy, Equity Jurisprudence (5th Ed. 1941) 419d, pp. 178-79.
"The mere lapse of time does not constitute laches . . . unless it results in prejudice to the defendant . . . as where, for example, the defendant is led to change his position with respect to the matter in question . . ." Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979).
In Bozzi, the seminal case dealing with the defense of laches, the plaintiff wife remarried and moved with the parties' children to Holland and did not communicate with the defendant husband until one month after her arrival in Holland. The defendant took no action with regard to the custody and visitation of the children and ceased making child support payments. Approximately seven years later, the plaintiff wife returned to the United States after her separation from her new husband. She then decided to seek legal action to collect the support payments. The defendant argued that the plaintiff's failure to allow visitation suspended or terminated his obligation to support the children, and further raised the defenses of laches and equitable estoppel. He claimed that the lapse of eight or nine years was an unreasonable and inexcusable delay in seeking relief.
The court found that there was no evidence found which disclosed prejudice to the defendant necessary to support a defense of laches. ". . . [T]he lack of any communication between the parties for about eight years, a lapse for which the defendant was at least equally responsible, might have been significant in supporting a claim of laches if there were any evidence that the defendant had changed his position in reliance upon an abandonment by the plaintiff of her claims against him." Id., 240. Lacking such evidence, the defense of laches could not be sustained.
In the case at hand, the plaintiff argues that her eleven-year delay in bringing this claim is excusable. The court will address each of the plaintiff's claims.
First, the plaintiff argues that because of the defendant's failure to provide proof of his income, it made it impossible for her to determine that he was paying her the incorrect amount of support. She claims that it was not until his income was finally verified when she received a copy of his Social Security wages (Plaintiff's Exh. A) after the institution of this action that she realized what his income was and that it had increased so as to require him to pay more in child support. Once the arrearage was discovered, she claims she promptly took legal action to pursue her claim.
This simply does not make any sense. Her attorney asked for proof of his income back in 1992 when the first increase was to occur. She clearly understood what needed to be done in order for her to verify what his income was. The only credible evidence of her requests for a verification of his income was the letter from her attorney in September 1992, which the defendant replied to and provided a pay stub to the plaintiff, and the letter from the plaintiff to the defendant in March 2001. Although that letter states that the defendant has not "complied with requests by [the plaintiff's] attorney to provide documentation of [the defendant's] income since the divorce," the court does not find any credible evidence to indicate that the plaintiff herself or through her attorney requested any such verification other than the 1992 letter. (Plaintiff's Exh. J.)
Second, the plaintiff claims that she waited before pursuing the arrearage because the defendant made threats concerning the custody of the children and she was afraid of confrontation with the defendant. If she raised the subject of child support, she was met with belligerence and harsh language. As evidenced from the cross letters in March 2001, (Plaintiff's Exh. J) the court is not surprised that this was not an amicable dissolution and probably there were problems throughout the last eleven years which produced very unpleasant encounters. But the court does not find credible the plaintiff's claims that she was in fear of the defendant and what he would do if she pursued this provision. There was testimony that they reached agreements on a number of topics concerning the children, some of which dealt with payments and credits of child support. The tone of her reply letter of March 5, 2001, is not one of a person who is fearful of the other.
In fact, the only motion for modification filed was referred to family relations which issues were successfully mediated and a modification of the original judgment was entered in May 1992, without the assistance of counsel it would appear.
Lastly, the plaintiff argues that the reason for her failing to act to enforce her claims was an inability to pay the associated legal expense. The court does not find this claim plausible. Her father regularly assisted her when she could not make ends meet with the children, "lending" her $10,000 a year.
The court is aware that this is the legal limit for gifts and the plaintiff also testified that these were not formal loans.
The court finds that the plaintiff's delay in bringing this contempt citation was inexcusable.
Prejudicial delay in bringing this action, the principal element in establishing a laches defense, was established. The court credits fully the defendant's testimony that in 1995 the parties had a conversation concerning his entitlement to relief under the then prevailing Child Support Guidelines. Based upon that conversation, they agreed that he would not seek any modification, as well as agreeing not to contest the plaintiff's move with the children from Storrs to Stonington, which resulted in increases of time and money to the defendant for visitation. If the plaintiff had brought this action when the third child was age 6 in 1995, he would have been entitled to relief and in fact would have been obligated apparently to pay less than he was actually paying. Now he is prevented from seeking any kind of retroactive modification and he has lost the opportunity which he had to get relief. The defendant changed his position in reliance upon the plaintiff's non-enforcement of the order of support as it related to changes in amount. He relied on the parties' agreement and abandoned any resort to the court.
Further, due to her inaction for almost twelve years, the defendant is prejudiced in that he cannot produce the required records to defend his claims. He offered convincing evidence that the numbers she set forth in the Social Security statement did not accurately represent his income due to relocation allowances and other items which might not have been includable in his net income or his "disposable" income. Our law is clear that child support determination or calculations must be based on net income. In order to defend her claims, he would need records going back to 1992, and it is not reasonable to expect that he would keep them (particularly in light of his understanding that she was agreeable to the payments he was making), nor can they be recreated. The defendant would have been in a more advantageous position had the plaintiff filed her motion earlier. See, Sablosky v. Sablosky, 72 Conn.App. 408, 805 A.2d 745 (2002).
The defendant's tax returns prior to 1997 were destroyed by the I.R.S. and no longer available. Defendant's Exh. 23.
The court finds the two elements of laches have been successfully proven and the plaintiff is guilty of laches.
The test to determine whether a party should be equitably estopped from raising a claim is well established. "The doctrine of equitable estoppel prevents a party from asserting a legal claim because it would be unfair or inequitable to allow him to do so." Colvin v. Perkins, Superior Court, judicial district of New Haven, Docket No. FA 89 290355 (May 13, 1996, Alander, J.) ( 18 Conn. L. Rptr. 104). "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed . . . as against another person, who has in good faith relied upon such conduct and has been led thereby to change his position for the worse." (Internal quotation marks omitted.) Bozzi v. Bozzi, supra, 177 Conn. 241.
"Strong public policies have long formed the basis of the doctrine of equitable estoppel. The office of an equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties . . . No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong." (Citation omitted; internal quotation marks omitted.) W. v. W., 256 Conn. 657, 661, 779 A.2d 716 (2001).
Under our well-established law, any claim of estoppel is predicated on proof of "two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury." Union Carbide Corp. v. Danbury, 257 Conn. 865, 873, 778 A.2d 204 (2001). "An estoppel is predicated on proof of misleading conduct resulting in prejudice to the other party . . . the party claiming estoppel has the burden of proof . . ." (Citations omitted.) Herbert S. Newman Partners v. CFC Construction Ltd, Partnership, 236 Conn. 750, 768, 674 A.2d 1313 (1996). "It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge." Connecticut National Bank v. Voog, 233 Conn. 352, 367, 659 A.2d 172 (1995); Sablosky v. Sablosky, supra, 72 Conn.App. 414-15.
In the case of Papcun v. Papcun, 181 Conn. 618, 436 A.2d 282 (1980), the defendant husband ceased making alimony and support payments and nine years later, the plaintiff wife made application for a contempt order seeking the arrearage. The court upheld the trial court's decision, which held that "the defendant had not changed his position in reliance on the plaintiff's nonenforcement of the orders of alimony and support. In absence of prejudice, estoppel does not exist." Id., 621-22.
The present case is clearly distinguishable from Papcun. The evidence presented to the court indicate that the plaintiff made inducements to cause the defendant to act to his injury. The plaintiff agreed to the defendant's proposal some time in 1995 that she would not take any action under the dissolution provisions and he would seek no modifications, which modifications would have given him relief. The defendant presented credible and reliable evidence that had he sought a modification in 1995 under the then prevailing Child Support Guidelines, he would have paid less than the $360.50 amount he was paying. Defendant's Exh. 19 indicated he would have been paying $315 per week in child support based on his February 1995 pay check and bonus.
The defendant experienced a detriment by relying on the agreement made with the plaintiff. He changed his position and, by so doing, acted to his injury. The court concludes that estoppel has been proven by the defendant.
"Issues of credibility obviously impact the application of the above principles." Hudyma v. Hudyma, Superior Court, judicial district of New London, Docket No. FA 0044464 (May 14, 1998, Solomon, J.) ( 22 Conn. L. Rptr. 204). In Hudyma, under a dissolution of marriage judgment, the defendant husband was ordered to make payment of alimony. The parties reached an oral agreement wherein the plaintiff stated "she didn't want the money" but at the hearing testified that she could not recall whether they actually talked about the alimony provision after the decree of dissolution entered. Eight years after the dissolution, the plaintiff then brought an action to enforce the alimony provision. The court, weighing the credibility of the parties, found the parties had in fact entered into an agreement and found the defenses of equitable estoppel, laches and waiver were established. Credibility was also a significant factor in Fiorita v. Fiorita, Superior Court, judicial district of Stamford/Norwalk, Docket No. FA 92 0126887 (August 7, 2000, Novack, Judge Trial Referee). In Fiorita, the minor children, by oral agreement of the parties, moved in with the defendant who ceased paying child support to the plaintiff. The court found the defendant had sustained his burden of establishing the defenses of equitable estoppel and laches as well as waiver.
It is all too often the case that after a dissolution action, the parties reach an agreement between themselves. Parties by their conduct cannot modify a decree of the court. The legal doctrines of laches, equitable estoppel and waiver act to prevent a party from misleading the other party into giving up rights and entitlements while waiting in the weeds. Here, the court finds the defendant to be credible as to his testimony regarding an agreement between the parties. The plaintiff was satisfied for almost 12 years with the amount that the defendant was paying, further evidence that she had agreed to that amount rather than come to court and risk any modification by the defendant. Instead she decided to wait in the weeds until any modification on his part would be meaningless regarding his obligation to pay any child support.
Waiting in the weeds is a poker term where sneaky poker players lie in wait, usually accompanied by a powerhouse hand they have sandbagged, to trap unwary aggressive players. Dictionary of gambling — www.dictionaryofgambling.com.
Having concluded that the defendant has satisfied his burden of proving laches and equitable estoppel, it is not necessary for the court to reach the issue of waiver.
The court finds that the provisions of the dissolution agreement were not self-executing and therefore, the defendant was only obligated to pay an increased child support that was judicially determined or agreed to by the parties. The court concludes that the defendant has also proven the defenses of laches and equitable estoppel. The court will still address the question of contempt as it relates to the defendant's unilateral decision to modify child support in August 2002, when Grace turned 18.
"In order to constitute contempt, a party's conduct must be wilful . . . the contempt remedy is particularly harsh . . . and may be founded solely upon some clear and express direction of the court . . . One cannot be placed in contempt for failure to read the court's mind . . . A good faith dispute or legitimate misunderstanding of the terms of an alimony or support obligation may prevent a finding that the payor's nonpayment was wilful. This does not mean, however, that such a dispute or misunderstanding will preclude a finding of wilfulness as a predicate to a judgment of contempt. Whether it will preclude such a finding is ultimately within a trial court's discretion. [Also, it] is within the sound discretion of the court to deny a claim for contempt when there is an adequate factual basis to explain the failure to honor the court's order." (Citations omitted; internal quotation marks omitted.) Sablosky v. Sablosky, supra, 258 Conn. 718.
"Judicial discretion, however, is always a legal discretion, exercised according to the recognized principles of equity . . . Such discretion . . . imports something more than leeway in decision making and should be exercised in conformity with the spirit of the law and should not impede or defeat the ends of substantial justice." (Citations omitted; internal quotation marks omitted.) Burton v. Browd, 258 Conn. 566, 569-70, 783 A.2d 457 (2001).
In the present case, the defendant unilaterally determined that he could reduce the child support due to Grace turning 18, the age when child support generally terminates so long as the minor child is no longer attending high school. He reduced the child support from $360.50 to $301 per week, for a reduction of $59.50. The court calculates the arrearage from August 8, 2002, until October 15, 2004, the date of modification of the child support. The court declines to make a finding of contempt, but orders that the defendant pay the sum of $6,783 representing 114 weeks of child support within thirty days of this judgment.
The court makes no awards of counsel fees to either party.
The plaintiff's motion for contempt is denied.
Swienton, J.